made  this  day  of 

1887,  by  and  between  Jacob  Hess,  Theodore 
Moss,  Daniel  L.  Gibbens,  as  Commissioners,  under  and 
by  virtue  of  an  Act  of  the  Legislature  of  the  State  of  New 
York,  being  chapter  499  of  the  Laws  of  1885,  passed  June 
13,  1885,  as  amended  by  chapter  503  of  the  Laws  of  18S6, 
passed  May  29,  1886,  parties  of  the  first  part,  and  the 
Consolidated  Telegraph  and  Electrical  Subway  Com- 
pany, a  corporation  duly  oiganized  and  existing  under 
and  by  virtue  of  the  Laws  of  the  State  of  New  York, 
party  of  the  second  pai  t. 

Whereas,  The  said  parties  of  the  'first  part  are  author- 
ized by  said  act,  as  amended  as  aforesaid,  to  cause  to  be 
devised  a  plan  for  the  placing  under  ground  of  all  elec- 
trical conductors  in  the  City  of  New  York,  and  to  carry 
the  same  into  operation  and  effect; 

And  whereas.  The  making  of  this  contract  is  deemed 
advisable  and  proper  for  the  purpose  of  accomplishing  the 
ends  intended  and  provided  for  by  this  act,  and  the  execu- 
tion of  the  duties  imposed  thereby  upon  the  said  parties  of 
the  first  part; 

Now,  therefore,  this  agreement  witnesseth  that  in 
consideration  of  the  premises  and  of  the  nuitual  promises 
and  agreements  herein  contained,  and  of  the  sum  of  one 
dollar  l)y  each  to  each  of  the  parties  hereto  in  hand  paid, 
the  receipt  whereof  is  hereby  acknowledged,  the  parties 
hereto  agi'ee  as  follows: 

L — The  party  of  the  second  part  hereby  agrees  to  pro- 
vide, build,  equipj  maintain  and  operate,  as  herein  pro- 
vided, the  subways  in  this  contract  mentioned  and  re- 
ferred to. 


2 

II.  — The  subways  aforesaid  shall  be  built  in  accordance 
with  the  plans  and  specifications  therefor  furnished  or  to 
be  fniiiished  by  the  parties  of  the  first  part,  or  their  suc- 
cessors, and  the  same  shall  be  provided,  built,  equipped, 
maintained,  operated  and  kept  in  good  repair  by  and  at 
the  cost'of  the  party  of  the  second  pai't,  who  will,  upon 
tlie  reasonable  demaiid  of  tiie  parties  of  the  first  part  or 
of  their  successors,  adopt  any  and  all  nece?siry  improve- 
ments that  will  increase  the  usefulness  and  efficiency 
of  the  system  contemplated  by  this  contract  and  the 
act  above  n;ferred  to.  The  parties  of  the  first  part 
and  their  successors,  shall  have  the  right  at  any  time  to 
make  such  modifications  and  changes  as  may  be  reason- 
ably necessary  in  the  said  subways  or  any  of  them  or  the 
construction,  plans,  material  or  any  other  matter  connect- 
ed with  them  or  any  of  them,  or  with  the  construction, 
maintenance  oi-  operation  of  them  or  any  of  them,  and  the 
pai-ty  of  the  second  part  shall  conform  to  and  carry  out 
any  changes  oi'  modifications  so  made. 

III.  — Tlie  party  of  the  second  part  shall,  at  its  own  cost, 
furnish  to' the  parties  of  the  first  part,  and  their  sue 
cessors,  any  and  all  maps,  working  and  other  i)lans,  pro- 
files, surveys  and  drawings,  made  to  scale  or  otherwise, 
and  all  accessible  data,  figures  and  information  that  may 
be  requested  by  said  parties  of  tlie  first  part,  or  their 
successors,  and  necessary,  or  deemed  to  be  so,  for  any  pur- 
pose relating  to  or  connected  with  said  subways  or  the 
duties  of  the  said  pai  ties  of  the  first  i^ai  t,  or  thnir  succes- 
sors, in  connection  therewitii  or  relation  thereto,  and  shall 
also  reimburse  the  ])artiesof  the  first  part,  or  their  succes- 
sors, for  all  reasonable  ex[)enses  incurred  by  them  in  super- 
intending and  inspecting  the  construction  of  said  sub- 
ways. 

IV.  — The  spaces  in  said  subways  si  all  be  leased  by  the 
party  of  the  second  part  to  any  C(Mni)any  or  cor[)orati()n 
having  lawful  power  to  operate  electrical  conductors  in 
any  street,  avenue  or  highway  in  the  City  of  New  York 


3 


that  may  apply  fpr  the  same,  including  any  company  or 
corporation  having,  or  which  shall  acquire,  lawful  power 
to  manufacture,  use  or  supply  electricity. 

No  space  not  actually  needed  for  occupation  by  its  elec- 
trical conductors  in  the  due  course  of  its  business,  shall  be 
leased  to  any  company  or  corporation  to  the  exclusion  or 
detriment  of  any  other  company  or  corporation  needing 
space  in  said  subways  and  desiring  and  able  to  pay  for  the 
same. 

The  said  party  of  the  second  part  shall,  without  charge, 
supply  to  the  City  of  New  York  all  space  in  said  subway 
necessary  for  its  electrical  conductors  and  tlio  electrical 
conductors  of  each  separate  department  of  said  city  which 
may  now  or  hereafter  be  required. 

If  at  any  time  the  space  in  such  subways  shall  not 
be  sufficient  for  all  the  companies  or  corp  jrations  so  apply- 
ing for  the  same,  or  for  the  City  of  New  York  or  any 
of  its  departments,  the  additional  space  needed  shall  be 
provided  by  the  party  of  the  second  part,  at  its  own  cost, 
by  the  construction,  maintenance,  equipment  and  opera- 
tion of  additional  subways  sufficient  therefor,  subject, 
however,  to  the  same  conditions  and  tlie  same  control  by 
the  parties  of  the  first  part,  or  their  successors,  as  the 
original  subways  are  by  the  terms  of  this  contract  and  by 
any  law. 

V. — The  party  of  the  second  part  may  fix  a  fair  scale  of 
rents  to  be  charged  according  to  the  kind  of  con- 
ductors and  the'amount  of^space  required  therefor,  which 
shall  be  at  the  same  rate  to  all  occupants  making  a  like 
use  of  said  subways,  but  the  scale  of  rentals  or  any 
charges  fixed  or  made  by  the  party  of  the  second  part 
shall  at  all  times  be  subject  to  the  control,  modification  and 
revision  of  the  ■  parties  of  the  first  part,  or  their  suc- 
cessors; and  no  contract  shall  be  made  between  the  party  of 
the  second  part  and  any  company  or  corporation  on  any 
terms  which  shall  not  require  the  payment  by  such  other 
company  or  corporation  of  rents  at  the  rates  so  fixed. 


# 


4 


VI. — Whenever  the  net  annual  profits  of  the  party  of 
the  second  part,  remaining  after  the  payment  of  the 
expenses  of  maintaining  and  operating  such  subways, 
shall  exceed  ten  per  cent,  upon  the  actual  cash  capi- 
tal invested  by  it  in  providing,  constructing  and 
equipping  such  subways,  then  the  excess  of  such  profit 
over  the  ten  per  cent,  shall  be  paid  into  the  Treas- 
ury of  the  City  of  New  York;  but  if  in  any  year 
or  years  prior  to  the  earning  of  such  excess,  the  earn- 
-  ings  of  the  party  of  the  second  part  shall  not  have 
equaled  ten  per  cent.,  then  the  party  of  the  second  part 
shall  be  first  entitled  to  recoup  itself  out  of  such  ex.cess 
foi-  the  difference  between  the  actual  annual  earnings  and 
the  said  ten  per  cent.,  the  intention  hereof  being  that  no 
payment  shall  be  made  to  the  City  of  New  York  out  of 
such  excess  of  earnings  until  the  party  of  the  second  part 
shall  first  have  actually  earned  and  received  ten  per  cent, 
for  each  year  theretofore.  And  the  party  of  the  second 
part  shall  and  will  at  all  times  keep  just,  full  and  true 
books  of  account  which  shall  show  in  detail  the  transac- 
tions had  by  it,  and  with  whom  the  same  were  had,  and 
the  nature  tliereof,  and  especially 

1.  The  amount  of  space  in  said  subways  occupied,  with 
the  names  of  the  occupants  thereof  and  the  respective 
amounts  of  such  space  occupied  by  eacli  occupant. 

2.  The  number  and  kind  of  electrical  conductors  therein, 
witli  the  names  of  the  owners  or  users  thereof. 

3.  The  gross  and  net  amount  in  detail  of  rentals  and 
charges  and  moneys  of  all  kinds  collected  or  received  by 
the  party  of  the  second  part,  and  from  whom  and  for 
what  the  same  were  received  or  collected,  specifying  the 
names  of  those  paying  such  moneys,  and  the  cause  or 
consideration  of  such  payments  in  detail. 

4.  All  payments  of  every  kind  made  by  tlie  party  of 
the  second  pait,  specifying  in  detail  and  separately  each 


5 


payment  and  to  whom  the  same  was  made  and  the  cause 
or  consideration  thereof,  so  as  to  show  specifically  the 
nature  thereof,  so  that  it  may  be  determined  whether  the 
same  is  chargeable  to  the  cost  of  construction  or  of  main- 
tenance. 

And  said  books  and  accounts,  and  all  the  books,  ac- 
counts, papers  and  writings  of  the  party  of  the  second 
part  shall  at  all  times  be  open  to  the  inspection  of  the 
parties  of  the  first  part,  or  their  successors,  and  of  the 
Comptroller  of  said  city,  or  any  person  or  persons  by  him 
or  them  deputed  to  examine  the  same,  and  they  or  he  may 
copy  the  whole  or  any  part  thereof. 

And  said  party  of  the  second  part  shall  and  will  on 
the  jf       day  of  ' .  ^  of  each  year  make 

and  i^turn  a  statement  to  the  Comptroller  of  the  City  of 
New  York,  in  such  form  and  verified  as  he  may  require 
and  prescribe  for  the  year  ending  the  next  preceding 
day  of  £y/'  /..  And  any  moneys 
payable  to  the  city  under  this  clause  of  this  agreement, 
by  the  party  of  the  second  part,  shall  be  paid  an- 
nually on  the     /,  ^  <^^y       '^^'t'^'^H^'^'^^*'''^'  ^ 

VII.  — The  party  of  the  second  part  shall  not  open  awy 
street  surface  without  first  obtaining  a  permit  therefor 
from  the  Commissioner  of  Public  Works,  or  other  officer 
or  department  of  said  city  vested  by  law  with  the  control 
of  the  surface  of  the  street  to  be  opened,  and  giving  to 
him  or  it  such  an  agreement  as  he  or  it  may  approve  and 
require  for  the  proper  restoration  of  the  pavement  of  said 
street  and  the  surface  thereof,  and  for  keeping  the  same 
in  repair  for  one  year  after  the  same  has  been  so  replaced 
or  restored. 

VIII.  — The  partj  of  the  second  part  shall  not  be  deemed 
to  be  the  servant  or  agent  of  the  parties  of  the  first  part, 
or  their  successors,  or  of  the  Mayor,  Aldermen, 
and  Commonalty  of  the  City  of  New  York  in  doing  any 
act  under  or  in  execution  ur  performance  of  this  contract, 
but  shall  be  deemed  to  be,  and  is  hereby  intended  to  be 


made  and  dealt  with  by  the  parties  of  the  first  part  and 
their  successors,  and  all  persons  whomsoever  as  an  inde- 
pendent party  contracting  with  the  j)arties  of  the  first  part, 
and  their  successors  and  others,  and  having  and  acquiring 
such  rights  for  itself  as  this  contract  secures  to  it. 

IX.  — All  companies  occupying  space  in  said  subways  sl)all 
own  their  own  conductors  and  shall  have  the  full  manage- 
ment and  control  thereof,  except  where  otherwise  mutually 
agreed  upon  between  the  said  party  of  the  second  part  and 
said  companies,  subject  to  the  approval  of  the  parties 
of  the  first  part  or  their  successors;  but  said  man- 
agement and  control  shall  be  subject  to  the  rights  of 
all  otlier  occupants  of  said  subways  and  to  such  reasonable 
rules  and  regulations  as  may  be  made  by  the  said  party 
of  the  second  part.  All  maintenance  and  repairs  of  such 
conductors  shall  be  done  by  the  company  owning  them, 
under  the  supervision  of  the  party  of  the  second  part, 
who  shall  prevent  injury  to  the  conductors  of  other  oc- 
cupants. 

X.  — In  case  any  dispute  shall  arise  between  the  party 
of,  the  second  part  and  any  company  occupying  or  de- 
siring or  required  to  occupy  said  subways,  the  same  shall 
be  referred  to  the  parties  of  the  first  part,  or  their  suc- 
cessors, for  settlement,  whose  decision  shall  be  final. 

XL— The  party  of  the  second  part  shall  give  a  bond  to 
the  parties  of  the  first  part,  and  their  successors,  in  the 
penal  sum  of  two  hundred  and  fifty  thousand  dollars,  with 
good  and  sufficient  sureties  satisfactory  to  the  j)arties  of 
the  first  part,  or  their  successors,  securing  the  just  and  full 
perforn)ance  of  this  contract,  and  the  building  or  provid 
ing  of  said  subways  as  herein  provided  and  securing  said 
parties  of  the  first  part  and  their  successors,  and  tlie 
Mayor,  Aldermen  and  Commonalty  of  said  city,  well  and 
safely  against  any  and  all  jiatent  and  other  suits  arising 
from  the  building  and  operation,  use  and  maintenance  of 
said  subways  or  of  any  subways  provided  by  the  party  of 


1 


the  second  part,  whethei'  the  same  now  are  or  shall  here- 
after be  built  by  it,  and  in  the  case  of  the  insolvency  or 
death  of  either  of  the  sureties  upon  such  bond,  the  party 
of  the  second  part  will,  upon  the  request  of  the  parties  of 
the  first  part,  or  their  successors,  give  a  new  bond  of 
the  same  tenor  and  effect,  and  subject  to  approval, 
the  same  as  the  bond  so  originally  to  be  given.  The  said 
bond  shall  also  contain  a  guarantee  to  the  City  of  New 
York  for  any  and  all  damage  to  said  city  by  reason  of  the 
construction  of  said  subways.  Any  and  all  provisions 
contained  in  the  subdivision  or  clause  marked  IX.  of  the 
agreement  between  Roswell  P.  Flower,  Jacob  Hess  and 
Theodore  Moss,  as  Commissioners,  under  the  acts  afore- 
said, and  dated  the  27th  day  of  July,  1886,  and  not 
in  this  agreement  contained,  are  hereby  revoked  and  can- 
celed. 

XII.— If  at  any  time,  in  the  opinion  of  the  parties  of 
the  fii'st  part  or  their  successors,  there  shall  be  a  sub- 
stantial failure  l)y  the  party  of  the  second  part  to  fully 
carry  out  the  provisions  of  the  said  agreement  dated  the 
27th  day  of  July,  1886,  as  amended  and  modified  by  this 
agreement,  and  it  is  so  adjudged  by  competent  judicial 
authority,  the  Mayor,  Aldermen  and  Commonalty  of  the 
City  of  New  York  may  enter  into  the  possession  of  said 
subways,  and  the  party  of  the  second  part  shall,  subject 
to  any  valid  mortgages  or  liens  then  thereon  outstanding, 
not  exceeding  fifty  per  cent,  on  the  actual  cost  of  such  sub- 
ways, and  all  leases  or  contracts  then  existing  for  the  use 
thereof  as  hereinbefore  provided,  forfeit  its  interest  in  such 
subways,  and  will  quietly  and  peaceably  sui-render  the 
possession  thereof  to  the  Mayor,  Aldermen  and  Com- 
monalty of  the  City  of  New  York,  who  shall  thereupon 
and  thereafter  hold  and  own  the  same,  subject,  however, 
to  the  same  powers  and  duties  of  the  parties  of  the  first 
part,  or  theiT  successors,  as  the  same  would  otherwise  have 
been  held  subject  to  by  the  party  of  the  second  part,  and 
the  same,  until  otherwise  provided  by  law,  shall  be  main- 
tained and  operated  by  the  said  Mayor,  Aldermen  and 


8 


Commonalty  of  the  City  of  New  York  by  and  through 
the  parties  of  the  first  part,  or  their  successors,  subject  to 
such  lawful  liers,  mortgages,  leases  and  contracts. 

XIII.  — The  parties  of  the  first  part  hereby  grant  to  the 
party  of  the  second  part  the  right  to  build  subways  in 
accordance  with  such  plans  and  specifications  as  shall 
at  any  time  be  furnished  by  the  parties  of  the  first 
part,  as  hereinbefore  provided,  and  said  parties  of  the 
first  part  hereby  agree  to  use  all  lawful  means  within 
their  power  to  compel  all  authorized  companies  or 
persons  using  electrical  conductors  to  comply  with 
the  provisions  of  law  and  to  place  their  conductors 
in  said  subways  and  to  pay  a  fair  rental  for  the  space 
occupied  therein,  but  neither  the  parties  of  the  first  part 
nor  their  successors,  nor  the  Mayor,  Aldermen  and  Com- 
monalty of  the  City  of  New  York,  shall  be  liable  or  re- 
sponsible for  any  neglect  or  failure  on  the  part  of  any  such 
company  or  person  so  to  place  their  conductors  in  said 
subways,  or  having  placed  their  conductors  therein,  to  pay 
the  fair  rental  for  the  space  occupied  by  him  or  it;  nor 
sball  the  Mayor,  Aldermen  and  Commonalty  of  the  City 
of  New  York  be  liable  for  any  neglect,  failure  or  refusal 
in  the  premises  of  the  i^arties  of  the  first  part,  or  their 
successors. 

XIV.  — The  successors  of  the  parties  of  the  first  part 
shall  be  construed  to  include  those  who  may  succeed  them 
as  Commissionei's  under  the  provisions  of  existing  laws, 
or  under  the  provisions  of  any  law  hereafter  passed  by  the 
Legislature  of  the  State  of  New  York,  or  any  officer  or 
officers  of  the  City  of  New  Yoi-k  who  shall  succeed  to  the 
powers  and  duties  of  tiie  parties  of  tlie  first  part,  or  any 
part  of  such  powers  and  duties,  under  the  provisions  of 
any  law  now  existing  or  hereafter  enacted  by  the  said 
Legislature,  or  any  other  persons  or  officers  hereafter  ap- 
pointed or  selected  pursuant  to  any  law,  to  succeed  to  the 
I)owers  and  duties,  or  any  part  thereof,  of  said  parties  of 
the  first  part. 


9 


XV.  — The  said  party  of  the  second  part  shall,  at  any 
time  after  January  Tfet  (1897),  eighteen  hundred  and  ninety- 
seven,  upon  the  demand  of  the  Commissioners  of  the  Sink- 
ing Fund  in  the  City  of  New  York,  by  proper  instrument 
or  instruments  of  conveyance  or  transfer,  in  due  form  and 
duly  executed,  sell,  assign,  transfer,  convey  and  set  over 
to  the  Mayor,  Aldermen  and  Commonalty  of  said  city  all  or 
any  of  the  subw^ays  constructed  by  it,  as  aforesaid,  and  all 
or  any  of  the  contracts  or  other  property  of  any  kind  held 
or  owned  by  the  party  of  the  second  part  for  any  of  the 
purposes  of  its  incorporation,  subject,  however,  to  all 
leases,  mortgages  or  contracts  theretofore  lawfully  made, 
within  the  limitations  imposed  by  section  XII.  of  this  con- 
tract, when  the  said  Commissioners  of  the  Sinking  Fund 
shall  request  them  to  and  for  the  payment  for  which  the 
said  Commissioners  of  the  Sinking  Fund  shall  provide,  as 
provided  by  any  law  hereafter  passed,  but  not  less  than 
the  cost  thereof;  and  if  the  said  company  shall  not  have 
earned  ten  per  cent,  per  annum  on  actual  cost  during 
the  term  of  this  contract  a  further  payment  shall  be 
made,  in  addition  to  the  cost,  not  exceeding  ten  per  cent, 
on  such  cost,  to  the  extent  of  such  deficiency  in  annual 
earnings. 

XVI.  — This  agreement  shall  not  bind  either  of  the 
parties  thereto,  except  and  until  it  shall  have  been  ratified 
and  confirmed  by  any  Act  or  Acts  of  the  Legislature  of 
the  State  of  New  York,  and  shall  be  null,  void  and  of  no 
effect  unless  and  until  the  bond  hereinbefore  mentioned 
and  required  to  be  given  by  the  party  of  the  second  part 
shall  be  given  within  thirty  days  after  such  act  shall  have 
been  passed,  or  within  such  further  time,  not  to  exceed 
sixty  days  additional,  as  may  be  granted  for  that  purpose 
within  said  thirty  days  by  said  parties  of  the  first  part  or 
their  successors. 

And  from  and  after  the  time  when  this  contract  shall 
become  binding  upon  the  parties  thereto,  it  shall  be  deemed 
and  construed  to  be  a  contract  amending  and  modifying 
the  agreement  made  by  and  between  the  Commissioners  of 


10 


Electrical  Subways  in  the  City  of  New  York  and  the  party 
of  the  second  part  hereto,  dated  the  27th  day  of  July, 
1886,  and  nothing  in  this  contract  nor  in  the  contract 
hereby  amended  and  modified  shall  be  construed  as  grant- 
ing to  the  party  of  the  second  part  any  exclusive  privilege, 
immunity  or  franchise  whatsoever. 

XVII. — This  contract  shall  be  executed  in  triplicate, 
one  copy  thereof  to  be  kept  and  retained  by  each  of  the 
parties  hereto,  and  the  third  copy  thereof  to  be  deposited 
and  filed  in  the  office  of  the  Comptroller  of  the  City  of  New 
York,  and  to  be  a  public  record. 


1 


Avery  Architectural  and  Fine  Arts  Library 
Gift  OF  Seymour  B.  Durst  Old  York  Likr  ary 


